What Can One Do When Judges Do Not Follow The Law?

A Letter Drafted By Bob Vinik Questioning A Judge Who Attacked Individuals And Appears To Have Used Different Standards Of Review.

Irwin Ironstone, J.D. added other information to assist the readers.

A Great Approach To Go After Judges Who Knowingly Violated The Law 2

The Letter Questioning A Judges Impartiality Follows 3

The Approach Taken In This Letter Is Very Dangerous 7

New Jersey Official Misconduct Statutes 2C:30-2 7

New York S 195.00 Official misconduct. 8 A lawyer in NY reviews Official Misconduct 8

Rude & Unprofessional Conduct by Public Servants: When the Criminal Threshold for Official Misconduct is Breached 9

In Florida the Official Misconduct statute is noted at 838.022 12 End Florida 12 New Jersey Rules of Administration of the Courts 12 RULE 1:33. Administrative Responsibility 12 1:33-1. The Chief Justice of the Supreme Court; Acting Chief Justice 12

I have known Bob Vinik for about 23 years. The drafter of the Letter recognized that there was discrimination by judges and other government bodies in New Jersey (As well as in other states.) Bob Vinik drafted this letter (1994) because members of the organisation where he is/was a member were being treated differently by those who should know better. The names of the people who were involved have been changed.

• Most judges would attack the sender rather than follow the law (It takes a very brave person to go after high government officials when they violate the law.); • • When you sue a judge for violations of your rights under color of law, another judge almost always dismisses the action and gives reasons that make no sense; • • It appears that the originator of this letter knows more about the First Amendment and abuses by the Judiciary than the presiding judges; • • Rather than being politically correct, a judge must follow and uphold the constitution, even if it means bringing charges against a judge, a lawyer, a prosecutor or an administrator; • • When a judge does not follow his oath of office, he should be prosecuted criminally under the official misconduct statute of the jurisdiction where the act occurs; • • It is impossible for people who are harmed to get relief by going to the State Prosecutor and/or State Attorney General – because they have discretion to follow or not follow the law; • • These issues raise questions about absolute or qualified immunity and abuse by judges or prosecutors who use discretion and knowingly fail to do their jobs; • • In my opinion, prosecutors protect judges because they are concerned about judges attacking them; • • One solution is to open up access to the grand jury to allow individuals to bring charges against judges and or prosecutors who fail to act appropriately; • Alternatively, establish a special prosecutor to evaluate charges against prosecutors or judges before assigning a free lawyer to protect them. • The reviewer of this letter, modified this document to include additional references to assist the readers who want additional information. • -=-=-=-=-=-=-=-=-=-=-=-=-=-=The Letter Questioning A Judges Impartiality Follows:

Your letter to our member, Mr. Clem Jones, was forwarded to me for response. We are, Sir, appalled by your lack of tact and understanding of the law. It is beyond our comprehension how a Judge of the Superior Court would blatantly put in writing an unconstitutional requirement. The question of prohibiting free speech in a public forum (The Essex County Court House) was addressed by the Federal Court in the Bonfire of the Vanities1 case. The Federal Court held:

“Although in this case the defendant is clothed with [good faith] immunity the same would not be true in the future. This court’s clear holding on this issue sets forth sufficient guideposts so that any analogous conduct would violate clearly established law. Monetary relief would, therefore, be available for an aggrieved plaintiff.”

As I’m sure you know, a decision by you such as the one in question is an administrative act prohibiting free speech in a public forum, the County Court House. The Chief Justice was put on notice by the Federal Court that if he prohibited freedom of speech in the court house again he would not even enjoy good faith or qualified immunity.

However, the prohibition of speech issued by you in your letter is a twofold violation in that Mr. Jones and Mr. Smith also have a Constitutional right to discuss their organization’s petition to the government for redress of egregious conduct of the courts, even if they are in a court room in the courthouse. Mr. Smith and Mr. Jones are long standing active members of The New Jersey Council For Children’s Rights. Mr. Smith has lectured at our meetings and is highly respected by a majority of our membership. Clearly, the court was not in session nor was a judge even in the room when our members had the discussion in question and passed documents.

Additionally, I wish to know if the chief justice or any one else has advised you of your responsibility in regard to freedom of speech in the courthouse. As you must be aware, all judges serve at his pleasure through the chain of command of the Administrative Office of the Court, and the presiding judge of the family part and the assignment judge of the vicinage as defined in Rule 1:33-1 et seq. The clear “master-servant” relationship is mandated therein.

Equally outrageous is that you, who have taken it as your responsibility to censure our free speech, have not banned the speech or passing in the courthouse of literature of the feminist chauvinists who oppose us. That you take so biased a stand is your business, however, you may not issue biased administrative rules in consideration of your bias. I would be pleased to settle this matter by discussion with you and your supervisors or you may simply wish to apologize and declare the offensive order void ab initio.

Most assuredly, Sir, the constitutional guarantees of freedoms and rights does not end at the courthouse door.

Please accept this letter as notice of our intent to sue in accord with the New Jersey Tort Claims Act. By copies of this letter to the chief justice, the presiding judge, the assignment judge of the vicinage and the director of the administrative office of the courts they are also put on notice.

The publisher of this letter does not condone using this letter without additional research because:

• Most judges would attack the sender rather than follow the law;

• If you decide to use this letter in your jurisdiction, verify that similar laws are applicable and determine how judges in your state have ruled.

-=-=-=-=-=-=-=-=-=-=-=-=-=-=

New Jersey Official Misconduct Statutes 2C:30-2

In New Jersey 2C:30-2. Official Misconduct is defined as: 2C:30-2. Official misconduct

A public servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit:

a. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner; or

b. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.

Official misconduct is a crime of the second degree. If the benefit obtained or sought to be obtained, or of which another is deprived or sought to be deprived, is of a value of $200.00 or less, the offense of official misconduct is a crime of the third degree.

-=-=-=-=-=- New York S 195.00 Official misconduct. A public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit:

1. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized; or

2. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office. Official misconduct is a class A misdemeanor.

http://www.new-york-lawyers.org/official-misconduct.html

Official Misconduct A lawyer in NY reviews Official Misconduct

The first critical element of New York Penal Law 195.00, Official Misconduct, is that the accused must be a public servant. “Public servant” is explicitly defined in the New York Penal Law and is defined as a public officer or employee of the state or any person who exercises the functions of a public officer or employee. It makes no difference if the person is appointed or elected.

Once it has been established that the defendant or accused is a public servant, in order for that person to be guilty of the crime of Official Misconduct (NY PL 195.00), he or she must, with the intention either deprive another of a benefit or to obtain a benefit either: • Commit a particular act relating to his or her office that constitutes an unauthorized exercise of his or her official functions. The accused must be aware that his or her actions or unauthorized; or

• Knowingly refrain from following or complying with a duty required by law or that is inherent to his or her position.

An “A” misdemeanor, Official Misconduct is punishable by up to one year in jail. In New York City (Manhattan, Brooklyn, Bronx, Queens and Staten Island), time served for a conviction of 195.00 would be on Rikers Island.

Although not a felony, it is imperative to consult with an New York criminal lawyer experienced in the crime of Official Misconduct if you have been arrested for this crime. Not only are crimes that betray the public trust magnified in the eyes of law enforcement, but the collateral consequences to your career and future are potentially imperiled as well. • When the Police Withhold Evidence is the Crime of Official Misconduct Committed • Rude & Unprofessional Police Conduct: The Official Misconduct Threshold • Further Analysis of Official Misconduct

Rude & Unprofessional Conduct by Public Servants: When the Criminal Threshold for Official Misconduct is Breached By Jeremy Saland

Official Misconduct, a crime codified as New York Penal Law 195.00, is not one of the more common criminal arrest charges in New York. While NY PL 195.00 is atypical in that it only a certain group of people can commit this offense, it is a crime that is equally serious in terms of its potential punishment of one year in jail as it is in its potential to derail careers and livelihoods. Very briefly, you are guilty of Official Misconduct if, as a public servant, with the intent to obtain a benefit or deprive another person of a benefit you either (1) commit an act relating to your office but constituting an unauthorized exercise of your official functions, knowing that such act is unauthorized or (2) you knowingly refrain from performing a duty which is imposed upon you by law or is clearly inherent in the nature of you office.

To help better understand the parameters and elements that constitute the crime of Official Misconduct in the New York Penal Law and New York courts, People v. Carlos Becker, NYLJ 1202633990493 (Sup. BX, Decided November 3, 2013), dissects what may be rude and unprofessional conduct but not the crime of Official Misconduct, PL 195.00. On or about March 11, 2013, Becker, a NYC police officer, pulled over and arrested Erica Noonan for driving while intoxicated. The facts leading up to the Official Misconduct charge included, amongst other things, that the defendant police officer touched Noonan’s breast; that the defendant gave Noonan his personal telephone number so she could call if she needed anything; and, finally, that the defendant made a video recording of Noonan while she was handcuffed, apparently because defendant believed Noonan had a “hot body” (stay classy, officer!). On March 14, Noonan texted the defendant, which resulted in regular communication between defendant and Noonan. During these conversations, defendant, amongst other things, offered to help Noonan with her case by speaking with the ADA and Noonan’s employer; defendant offered to check her DMV record; and defendant sent pictures of himself to Noonan’s cell phone.

On March 24, defendant and Noonan went on a date in which they first had dinner and drinks and then proceeded to a bar, where each individual consumed shots and mixed drinks. Sometime thereafter, Noonan blacked out and only recalled “leaving the bar, getting into defendant’s car, going over a bridge, getting out of defendant’s car, and waking up in defendant’s bed with her eye swollen shut.” She asked defendant why her eye was swollen, to which he responded that she had fallen while intoxicated. Defendant denied ever having any sexual contact with her.

With all this said, the District Attorney’s Office charged the defendant with one count of Official Misconduct (NY PL 195.00) based solely upon the video recording made during Noonan’s arrest; thus, the Court limited their analysis to the video. Past courts have stated that the purpose of the Official Misconduct statute is to “encompass flagrant and intentional abuse of authority by those empowered to enforce the law.” People v. Feerick, 93 A.D. 2d 433, 445 (1999). In order for an Official Misconduct charge to stand, the People are required to show “1) that a public servant intended to obtain a benefit; and 2) that a public servant knew his or her acts were an unauthorized exercise of his official function.”Id. at 446. The Court held that neither of these requirements was established in this case.

As to the first element, the Court stated that although defendant’s actions both before and after the recording were to “further his personal relationship” with Noonan, the videotaping in and of itself “did not advance this objective.” In other words, the Court chose not to “characterize an act designed to provide a private satisfaction, undisclosed to the object of desire, to constitute a benefit.”

As to the second element, this also was not met because the People’s evidence “failed to establish that defendant knew that the act of videotaping Noonan was an unauthorized exercise of police function.” Continuing, the Court wrote that the People did not offer a specific rule or regulation in the Patrol Guide that prohibited the defendant from making a “personal recording” of Noonan. Furthermore, defendant freely and voluntarily disclosed this video to an Internal Affairs Bureau detective suggesting that defendant “did not know that making a personal video while on-duty was wrong.” Not only did defendant openly disclose the video, he also volunteered to play it for the detective and allowed him to make a copy of the video further evidencing that “defendant did not believe he had done anything wrong in making this video.” Therefore, the Court found that the evidence “does not establish a prima facie proof of all the elements of the crime charged.”

In a critical closing, the Court wrote that this determination “[was] not intended to condone defendant’s actions, which…were not only insulting, demeaning, and disrespectful to Noonan, but also wholly unworthy of a New York City police officer.” Concluding, the Court emphasized, “defendant’s actions represent serious errors of judgment more appropriately address in a disciplinary forum”, not in a court of law. Id. at 448.

To learn more about the crime of Official Misconduct pursuant to New York Penal Law 195.00 or to educate yourself about the various crimes set forth in the Penal Code, New York criminal procedure, defenses and other practical elements of criminal practice, review this blog, follow the links found in this entry or go directly to the CrottySaland.Com website.

A New York criminal defense firm established by two former Manhattan Assistant District Attorneys, the New at Crotty Saland PC are dedicated to the practice of criminal In Florida the Official Misconduct statute is noted at 838.022 (1) It is unlawful for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to another, to: (a) Falsify, or cause another person to falsify, any official record or official document;

(b) Conceal, cover up, destroy, mutilate, or alter any official record or official document or cause another person to perform such an act; or

(c) Obstruct, delay, or prevent the communication of information relating to the commission of a felony that directly involves or affects the public agency or public entity served by the public servant.

(2) For the purposes of this section:

(a) The term “public servant” does not include a candidate who does not otherwise qualify as a public servant.

(b) An official record or official document includes only public records.

(3) Any person who violates this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. New Jersey Rules of Administration of the Courts RULE 1:33. Administrative Responsibility

1:33-1. The Chief Justice of the Supreme Court; Acting Chief Justice

The Chief Justice of the Supreme Court shall be responsible for the administration of all courts in the State. To assist in those duties the Chief Justice shall appoint an Administrative Director of the Courts who shall serve at the pleasure of and report directly to the Chief Justice. A full-time judge of any court of this State may be designated to serve temporarily as Acting Administrative Director, in which event such judge shall continue to hold, and shall only be paid the salary of such judicial office. If there is a vacancy in the office of Chief Justice, the senior justice shall serve temporarily as Acting Chief Justice. Seniority shall be determined by order of taking of oath as a member of the court. If the Chief Justice is absent or unable to serve, the senior justice shall serve temporarily as Acting Chief Justice.

• (a) The Chief Justice shall divide the State into such geographical divisions as appropriate to facilitate the efficient administration of the courts. Such geographical divisions shall be known as “vicinages.”

• (b) For each vicinage, the Chief Justice shall designate a judge of the Superior Court to serve as Assignment Judge. Each such Assignment Judge shall serve at the pleasure of and report directly to the Chief Justice.

• (c) Within each vicinage, the Chief Justice shall organize the trial court system into four functional units to facilitate the management of the trial court system within that vicinage. These units shall be: Civil, Criminal, Family and General Equity.

• (d)

o (1) Each functional unit shall be supervised by a Presiding Judge who shall be appointed by the Chief Justice, after consultation with the Assignment Judge, and who shall serve at the pleasure of the Chief Justice. A Presiding Judge may supervise more than one functional unit. The Presiding Judge shall report directly and be responsible to the Assignment Judge.

o (2) The Chief Justice may appoint the Assignment Judge to serve as the Presiding Judge for one or more functional units within the vicinage.

• (e) The Chief Justice shall designate a judge of the Tax Court as presiding judge, to serve at the pleasure of the Chief Justice.

Note: Former rule redesignated R. 1:33-3 and new rule adopted October 26, 1983 to be effective immediately; paragraphs (a) (b) (d) and (e) amended June 29, 1990 to be effective September 4, 1990; paragraph (c) amended June 28, 1996 to be effective September 1, 1996.

1:33-3. The Administrative Director of the Courts

The Administrative Director of the Courts shall be generally responsible for the enforcement of the rules, policies and directives of the Supreme Court and the Chief Justice relating to matters of administration. At the direction of the Chief Justice and the Supreme Court, the Administrative Director shall promulgate a compilation of administrative rules and directives relating to case processing, records and management information services, personnel, budgeting and such other matters as the Chief Justice and Supreme Court shall direct. The Administrative Director also shall perform such other functions and duties as may be assigned by the Chief Justice or by rule of the Supreme Court.

Note: Former rule redesignated as R. 1:33-4 October 26, 1983 to be effective immediately. Source (Current Rule)-Formerly R. 1:33-2 redesignated as R. 1:33-3 and amended October 26, 1983 to be effective immediately; amended June 29, 1990 to be effective September 4, 1990.

• (a) The Assignment Judge shall be the chief judicial officer within the vicinage and shall have plenary responsibility for the administration of all courts therein, subject to the direction of the Chief Justice and the rules of the Supreme Court. The Assignment Judge shall be responsible for the implementation and enforcement of the rules, policies and directives of the Supreme Court, the Chief Justice and the Administrative Director.

• (b) The Assignment Judge shall be the authorized representative of the Chief Justice for the efficient and economic management of all courts within the vicinage. The responsibilities of the Assignment Judge also shall include all such matters affecting county and municipal governments, including but not limited to budgets, personnel, and facilities.

• (c) The Assignment Judge shall be responsible for the supervision and efficient management of all court matters filed in the vicinage and for the supervision, superintendence and allocation of all judges and personnel having a judicial support function within the vicinage.

• (d) The Assignment Judge shall have full responsibility for the administration of all court units within the vicinage, including those of the Surrogate and the Deputy Clerk of the Superior Court.

• (e) Subject to uniform minimum standards and conditions promulgated by the Administrative Director, the Assignment Judge may appoint and discharge judicial support personnel within the vicinage.

• (f) The Assignment Judge shall perform such additional duties as shall be assigned by the Chief Justice or by rule of the Supreme Court.

• (g) The Presiding Judge for Administration of the Appellate Division, with the assistance of the Deputy Presiding Judge for Administration, shall have responsibility for the administration of the Appellate Division subject to the direction of the Chief Justice and the rules of the Supreme Court. The Presiding Judge for Administration shall be responsible for the implementation and enforcement of the rules, policies and directives of the Supreme Court, the Chief Justice and the Administrative Director; the responsibilities of the Presiding Judge for Administration shall include all personnel and management matters as are assigned by the Chief Justice or by rule of the Supreme Court, and the Presiding Judge for Administration shall perform such additional duties as may be assigned.

• (a) The Trial Court Administrator shall be the administrative arm of the courts within the vicinage, under the direction of the Assignment Judge and the Administrative Director. The Trial Court Administrator shall be appointed by the Administrative Director, after consultation with the Assignment Judge, subject to the approval of the Chief Justice. The responsibilities of the Trial Court Administrator shall include the provision of technical and managerial support to the Assignment Judge and Administrative Director with respect to budget development and expenditures, the supervision of all judicial support personnel, program development and analysis, facilities and resource management, the provision of such assistance as shall be necessary to such advisory committees to the courts as shall be appointed, and such additional administrative duties as shall be designated by the Administrative Director.

• (b) After consultation with the Assignment Judge, the Administrative Director may appoint such Assistant Trial Court Administrators as are deemed necessary. The Assistant Trial Court Administrators shall report to and be supervised by the Trial Court Administrator.

• (c) For each vicinage there shall be a Case Coordinator who shall be responsible for the efficient movement of cases within the vicinage, subject to the direction of the Assignment Judge.

• (d) The Trial Court Administrator shall serve as the Case Coordinator for the vicinage,provided, however, that the Administrative Director may designate, after consultation with the Assignment Judge, an Assistant Trial Court Administrator to serve as Case Coordinator.

Note: Former rule redesignated as R. 1:33-9 and new rule adopted October 26, 1983 to be effective immediately; paragraphs (a) and (b) amended June 29, 1990 to be effective September 4, 1990.

1:33-6. Presiding Judges of Functional Units

• (a) Except as provided by the Chief Justice or by the Supreme Court, the Assignment Judge may delegate to the Presiding Judge of each functional unit within the vicinage, judicial duties and responsibilities allocated to the Assignment Judge by these rules. • (b) In addition to judicial duties, the Presiding Judge of each functional unit within the vicinage shall be responsible for the expeditious processing to disposition of all matters filed within that unit.

• (c) The Presiding Judge annually shall submit to the Trial Court Administrator and Assignment Judge, budget and personnel needs and recommendations for the unit at such times and in such format and in accordance with such procedures as shall be prescribed by the Administrative Director.

• (d) The Presiding Judge shall perform such additional administrative duties as shall be assigned by the Assignment Judge and shall be responsible for the implementation and enforcement within the court of all administrative rules, policies and directives of the Supreme Court, the Chief Justice, the Administrative Director and the Assignment Judge.

1:33-6A. Supervising Judges of the Special Civil Part The Assignment Judge in each vicinage shall designate a Supervising Judge of the Special Civil Part, who shall be responsible for such supervisory and administrative duties for that Part as may be assigned by the Civil Presiding Judge. The Supervising Judge shall serve at the pleasure of the Assignment Judge and the Assignment Judge may designate the Civil Presiding Judge to be the Supervising Judge.

Note: New R. 1:33-6A adopted July 13, 1994 to be effective September 1, 1994.

1:33-7. Division Managers There shall be on the staff of the Trial Court Administrator a Division Manager for each court-support unit within the vicinage who shall be appointed by the Administrative Director after consultation with the Assignment Judge. The Division Manager’s responsibilities shall include the management, under the direction of the Presiding Judge and Trial Court Administrator, of such judicial-support personnel and resources as have been allocated to the Division Manager’s functional unit by the Assignment Judge and Trial Court Administrator.

Note: Adopted October 26, 1983, to be effective immediately; amended June 29, 1990, to be effective September 4, 1990; amended July 14, 1992 to be effective September 1, 1992.

1:33-8. Probation Services • (a) For each vicinage, there shall be a Vicinage Chief Probation Officer who shall be appointed by the Administrative Director after consultation with the Assignment Judge, subject to the approval of the Chief Justice and who shall serve at the pleasure of the Administrative Director.

• (b) The Vicinage Chief Probation Officer shall be the supervisor of probation services. The responsibilities of said officer shall include the supervision and management of the delivery of probation services as part of a statewide system as organized and directed as to programmatic and statewide policy matters by the authority of the Administrative Director. In the performance of professional duties over probation services, the Vicinage Chief Probation Officer shall report to the Assignment Judge. In the performance of administrative duties, the Vicinage Chief Probation Officer shall report to the Trial Court Administrator.

• (c) The Vicinage Chief Probation Officer annually shall submit to the Trial Court Administrator the budget and personnel needs of the Probation Department and recommendations for probation services at such times, in such format and in accordance with such procedures as shall be prescribed by the Administrative Director.

• (d) The Vicinage Chief Probation Officer shall assign to each functional unit such staff as may be required. The staff so assigned shall be directly responsible to the Presiding Judge with regard to their day-to-day functions.

• (e) The Vicinage Chief Probation Officer shall perform such additional duties as shall be assigned by the Assignment Judge.

Note: Adopted October 26, 1983 to be effective immediately; paragraphs (b) (c) and (e) amended June 29, 1990 to be effective September 4, 1990.

1:33-9. Review of Administratively Recommended Facilities Disputes Dispositions Any dispute between the county governing body and the Assignment Judge concerning the location, size, or other physical characteristics of courtrooms, chambers, office space or related facilities shall, at the request of either party, be resolved by submission of the dispute to arbitration. The number or selection of arbitrators may be stipulated by mutual consent of both parties to the dispute. If the parties fail to stipulate the names or number of arbitrators, the county governing body shall select one arbitrator, the Assignment Judge a second arbitrator, and the two arbitrators thus selected shall pick a third. In the event said two arbitrators are unable to agree upon a third arbitrator, the third arbitrator shall be selected by the American Arbitration Association in accordance with its procedures. The arbitrators’ jurisdiction shall be limited to the consideration of disputes concerning the location, size, or other physical characteristics of courtrooms, chambers, office space or related facilities. The decision of the arbitrators is subject to review by the Supreme Court pursuant to the standards set forth in N.J.S.A. 2A:24-8 and -9 but, otherwise, shall be final, binding, and not subject to review unless the Supreme Court, on petition by the county or by the Assignment Judge, finds by clear and convincing evidence that the decision fails to balance the needs and interests of the county and the Judiciary in a fair manner.

Being charged with and arrested for any misdemeanor crime in New York is no walk in the park. A New York criminal defense attorney need not advise you of this obvious fact. The reality is, any accusation has significant and collateral consequences. When the crimes involve some alleged form of fraud or dishonesty involving the government, the offense looks even uglier. Two crimes that fit in this mold are Official Misconduct, New York Penal Law 195.00 and Obstructing Governmental Administration in the Second Degree, New York Penal Law 195.05. As ugly as the crimes may be, however, an arrest for either PL 195.00 or PL 195.05 does not equate to guilt beyond a reasonable doubt.

Although I have blogged and drafted materials on both of these crimes, before addressing a recent court decision it is worth briefly explaining the parameters and definitions of these offenses. To be guilty of Official Misconduct pursuant to NY PL 195.00, one first must be a public servant. Further, one must have the intent to obtain a benefit or deprive another person of a benefit. In addition to these elements, as charged in the case discussed below and according to subsection two of this crime, one must knowingly refrain from performing a duty that one is imposed by law or clearly inherent in the nature of one’s office.

An obviously different crime, Obstructing Governmental Administration in the Second Degree, in violation of NY PL 195.05, is defined differently than Official Misconduct. Here, one is guilty of this crime if one intentionally obstructs, impairs or perverts the administration of law. This must be done by means of intimidation, physical force or interference, or by means of any independently unlawful act. Now that we have addressed these two offenses, lets review a recent legal decisions that will give us a better understanding of these crimes.

In People v. Nicholas Lemma, 2010NA026090, NYLJ 1202590033334, at *1 (Dist., NA, Decided February 11, 2013), the defendant was arrested for Official Misconduct and Obstructing Governmental Administration in the Second Degree. At the time of his arrest, Lemma was a police officer and detective in Nassau County. One of his investigations involved an alleged robbery by Raheem Crews. Despite having direct knowledge that Mr. Crews was incarcerated at the time of the alleged robbery, and therefore Crews could not have committed the crime, Lemma did not share this information with prosecutors or other law enforcement agents at the time of Crews’ arrest. For multiple months, Crews was charged with varying degrees of robbery for the his alleged conduct before the case against him was ultimately dismissed. It is clear from the nature of Lemma’s employment that as a police officer, Lemma was a public servant. Not as obvious was whether by keeping the fact of Crews’ incarceration to himself, Lemma violated a duty imposed by law or clearly inherent in the nature of his office as a police officer. According to the court (a review of the actual case goes into much greater detail of when this duty arises in general):

“While the People [prosecution] are correct that police officers have an obligation to disclose exculpatory information in their possession, See: People v. Russo, 109 A.D.2d 855, 486 N.Y.S.2d 769 (2nd Dept. 1985), the People’s reliance on this principle is misplaced. The Defendant’s failure to disclose the fact that Raheem Crews was incarcerated on March 26, 2005 simply was not a violation of such a duty.”

While withholding the above information is certainly concerning and seems ethically corrupt, the court examined the officer’s “duty” in the context of the Brady rule which dictates that exculpatory evidence must be provided to the defense, but not necessarily at the point it is discovered. Although one can violate their Brady obligation, doing so is not necessarily criminal.

The court then turned to whether the defendant intend to obtain a benefit or deprived another person of a benefit. Here, the defendant argued he obtained no benefit by withholding the information and his failure to disclose “‘was anything other than ‘the product of inadvertence, incompetence, blunder, neglect or dereliction of duty [which] no matter how egregious [should] more properly be considered in a disciplinary rather than criminal forum.’” The benefit the defendant did intend to deprive the accused of, according to the People was “to deprive Crews of a benefit, namely to be exonerated, and have is liberty restored….” This intent could be inferred from the defendant’s failure to provide the exculpatory information.

Despite the People’s assertion, the court disagreed and noted that there is a very real difference between “knowledge” and “intent.” “‘Intent is the actor’s conscious aim or objective in performing certain acts, while knowledge is an awareness that a particular element of a crime is satisfied (citation omitted).’” People v. Cabassa, 79 N.Y.2d 722, 586 N.Y.S.2d 234 (1992); See also: Penal Law 15.05(1) and 15.05(2).

In short, “[i]t may appear upon the record that the defendant[] [was] guilty of stupidity and veniality and [was] unreasonable in what [he] did. But these qualities are not criminal. And we cannot substitute a reasonable man test for the essential requirement of criminal intent. Without criminal intent there is not a crime here.” People v. Mackell, 47 A.D.2d 209, 366 N.Y.S.2d 173 (2nd Dept. 1975) [conviction of District Attorney of Official Misconduct for failing to disclose knowledge of scheme to defraud reversed].

Just like the insufficiency of the Official Misconduct arrest charges as contained in the complaint, elements of Obstructing Governmental Administration in the Second Degree elements were missing as well. First, the complaint did not establish the defendant’s intent to “obstruct, impair or pervert the administration of law, or prevent or attempt to prevent the performance of that function by failing to advise anyone that [the defendant] was incarcerated….While his silence is demonstrated to have been the result of neglect, carelessness, callousness or indifference, this is not the same thing as a ‘conscious objective or purpose’ to affect the administration of justice in any way.” Further, the criminal court complaint did not establish any intimidation or related actions or interference. In fact, the information establishes the defendant failed to take any action at all. Without an independent unlawful act, the Obstructing charge failed as well. An interesting case that walks the line between an ethical and criminal violation, Lemma is certainly a “good read.” From what the case outlines, “good” and Lemma, however, may not go hand in hand. Whether or not Crews was a jerk, condescending, a punk or a convicted criminal, all members of law enforcement have a moral and ethical obligation.

To read about the crimes is New York Penal Law 195.05 or New York Penal Law 195.00, follow the links above to CrottySaland.Com or search for those terms in the NewYorkCriminalLawyerBlog.Com. There you will find not only the analysis of particular statutes, but a review of legal decisions that further define New York’s criminal code. Representing clients in all criminal arrests, indictments, investigations and trials, the founding New York criminal lawyers at Crotty Saland PC both served as Assistant District Attorneys in the Manhattan District Attorney prior to starting the criminal defense firm.

Obstructing Governmental Administration Often times charged along with or in lieu of Resisting Arrest (New York Penal Law 205.30), Obstruction of Governmental Administration in the Second Degree (New York Penal Law 195.05) is a distinct crime with its own elements. An “A” misdemeanor, Obstruction of Governmental Administration is punishable by up to a year in jail. Review the Web address above for more details

JANUARY 21, 2010 Resisting Arrest: New York Penal Law 205.30 & Your Criminal Defense By Jeremy Saland Resisting arrest is described at the web address noted above. It is a throw in charge used by the police. For more information, read the article. According to Penal Law 205.30: Resisting Arrest end

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